The other day I spoke to a school employee who works with students who have educational challenges. Some come to school speaking little English and some come from families who are not literate in any language. Some come to school having experienced what educators have come to call trauma. Some lack equal phonic readiness and pre-numeracy skills. Some need help in becoming socially and emotionally ready for school The vast majority of these children have the intellectual potential to perform at a high level, but they need a whole lot of support and teaching directed to take them where they are to where they need to be.
The school employee pointed out that students who meet the criteria for special education have a right to receive the support they need, as a matter of course. These other students, he pointed out, have no such right, and, he said, the difference in what the schools can do, and what they must do, is really stark.
That got me to thinking as to whether this difference is consistent with our constitutional requirement for equal protection of the law. Don't get me wrong, this post is not a critique of the right to special education. Our special education laws were passed because in the 1970's dozens of federal and state courts began to hold that students who need extra help and specialized instruction are being denied equal protection. The extra resources they receive, and the instructional accommodations they receive are not only deserved, but they are required under the constitution.
When the first major federal special education law was passed, both the House and the Senate Reports attributed the impetus for special education laws to two federal-court judgments rendered in 1971 and 1972. The Senate Report states, passage of the Act “followed a series of landmark court cases establishing in law the right to education for all handicapped children.” S.Rep., at 6, U.S.Code Cong. & Admin.News 1975, p. 1430. (See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982).
The federal special education laws, then, did not create the right to special education: they were passed to enforce the constitutional right and to create a procedural framework that would assure that students disadvantaged by disability would receive a free appropriate education.
The school employee wasn't complaining about the help that students with disabilities receive. Instead, he was asking why it is fair that some students who need extra resources receive it as a matter of right, whereas other students, who also have disadvantages that prevent them from receiving an education that meets state standards, do not get those extra resources.
The school employee pointed out that students who meet the criteria for special education have a right to receive the support they need, as a matter of course. These other students, he pointed out, have no such right, and, he said, the difference in what the schools can do, and what they must do, is really stark.
That got me to thinking as to whether this difference is consistent with our constitutional requirement for equal protection of the law. Don't get me wrong, this post is not a critique of the right to special education. Our special education laws were passed because in the 1970's dozens of federal and state courts began to hold that students who need extra help and specialized instruction are being denied equal protection. The extra resources they receive, and the instructional accommodations they receive are not only deserved, but they are required under the constitution.
When the first major federal special education law was passed, both the House and the Senate Reports attributed the impetus for special education laws to two federal-court judgments rendered in 1971 and 1972. The Senate Report states, passage of the Act “followed a series of landmark court cases establishing in law the right to education for all handicapped children.” S.Rep., at 6, U.S.Code Cong. & Admin.News 1975, p. 1430. (See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982).
The federal special education laws, then, did not create the right to special education: they were passed to enforce the constitutional right and to create a procedural framework that would assure that students disadvantaged by disability would receive a free appropriate education.
The school employee wasn't complaining about the help that students with disabilities receive. Instead, he was asking why it is fair that some students who need extra resources receive it as a matter of right, whereas other students, who also have disadvantages that prevent them from receiving an education that meets state standards, do not get those extra resources.
We cannot really deny that a large portion of the achievement gap results from these educational disadvantages. The Thomas Fordham Foundation's report "Fund the Child" makes this point eloquently enough:
Although we may wish that achieving this goal were easy for every student, numerous studies have shown that some students require more resources than others: Some start behind because their lives prior to school did not provide them with the same educational opportunities as other children. Some home circumstances present problems related to health, nutrition, parental support, and other conditions, all of which materially impact children’s performances. Some have disabilities that lead them to require additional education services and attention. Some are from homes where English is not the primary language. Some are recent immigrants who had little formal education in their home countries.
In a student note in the Boston College Law Review, an author argues that the special education law violates equal protection because it gives special treatment to some students. 40 BC L Rev 633 (1999). But the author draws the wrong conclusion. As I have said, the right to special education derives from the right to equal protection. The real violation of equal protection is the denial of appropriate education to other students with educational disadvantages. The school employee has put
us on to an important topic; although not a lawyer, he recognizes that Minnesota is unthinkingly denying disadvantaged students equal protection. Their rights to realize their full potential
through education is morally and legally indistinguishable from the rights of
students with disabilities. To follow
up that assertion, we will need at least one more post.
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